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Koewing v. Thalmann

123 N.Y.S. 750 Court N.Y. App. Div. Decision date 1910-06-17 English

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p. 750
KOEWING v. THALMANN et al.
(Supreme Court, Appellate Division, First Department.
June 17, 1910.)

Headnote

Tbial (§ 165[1] )—Dismissai^-Eeeect.
Dismissal of a complaint at the close of the testimony is in the nature of a nonsuit, and not a dismissal on the merits.
[Ed. Note.—For other cases, see Trial, Dec. Dig. § 165.*]
Appeal from Trial Term, New York County.
Action by Frank Koewing against Ernest Thalmann and another. From a judgment dismissing the complaint, plaintiff appeals.
Modified and affirmed.
See, also, 123 App. Div. 398 , 107 N. Y. Supp. 1042 .
Argued before INGRAHAM, P. J„ and McBAUGHBIN, SCOTT, CBARKE, and MIBBER, JJ.
E. C. Crowley, for appellant.
J. Markham Marshall, for respondents.

The complaint having been dismissed at the close of the testimony, the action of the court was in the nature of a non-suit, and therefore not upon the merits. The judgment must therefore be modified, by striking out the words “on the merits,” and, as so modified, affirmed, with costs to the resnondents.